U.S. Detainees at Guantánamo Bay:
The Inter-American Human Rights Commission Responds to a "Legal Black Hole"

by Richard J. Wilson

On January 10, 2003, Amnesty International sent a letter to the Bush administration noting that exactly a year had passed since the U.S. military first began to place a group of detainees at Guantanamo Bay, Cuba. Amnesty called the prisoners’ situation a “legal black hole,” referring to the fact that the United States government continues to argue that the nearly 650 detainees from an estimated 40 nations are not entitled to any of the legal protections of U.S. domestic law or international human rights law.

On February 25, 2002, a group of petitioners filed the first international legal challenge to those detentions with the Inter-American Commission on Human Rights (the Commission). The petition was coordinated by the Center for Constitutional Rights, based in New York City, in collaboration with the Center for Justice and International Law (CEJIL) in Washington, the Human Rights Law Clinic at Columbia University in New York City, Judith Chomsky, a private practitioner, and myself, acting in my personal capacity. After the initial filing, a number of additional law professors, NGOs and lawyers from England and France joined in signing onto the petition. The petition before the Commission was filed in parallel with a federal petition for habeas corpus pursuant to 28 U.S.C. § 2241, filed on behalf of named detainees at Guantanamo. The federal action, filed in the US District Court in Washington, DC and later consolidated with a similar case involving Kuwaiti nationals in detention in Cuba, was dismissed for want of jurisdiction because “the military base at Guantanamo Bay, Cuba is outside the sovereign territory of the United States.” Rasul v. Bush, Civil Action No. 02-299, U.S. Dist. Ct. D.C., Memorandum Opinion of July 30, 2002, at 30. An appeal was taken from that ruling, with oral arguments in early December of 2002. As of this writing, the case is still pending decision before the U.S. Ct. of Appeals for D.C. as Habib v. Bush, Case Nos. 02-5284 and 02-5288 (Consolidated).

The petition with the Commission was filed to bring together the existing evidence regarding the status and treatment of the Guantanamo detainees, to bring media and community attention to the situation of the detainees, and to obtain a prompt and hopefully favorable interpretation of the international legal obligations of the United States with regard to those detainees. It accomplished all of those goals.

Who Are the Detainees at Guantanamo?

All information about who the U.S. military has detained at Camp Delta (previously called Camp X-Ray) at Guantanamo, and the conditions of their confinement, is based upon publicly available information gleaned from press reports, both here and abroad. The U.S. government refuses to release the names, nationalities or addresses of any of the detainees. Detainees are allowed only limited correspondence rights with members of their families, and all access into Camp Delta has been barred except for a very few diplomatic missions from detainees’ home countries and a visit from the International Red Cross, whose practice it is to communicate only privately with the government in question after its visit.

The detainees are mainly nationals of middle-eastern countries such as Saudi Arabia, Pakistan, Egypt and Kuwait, although there are also nationals from European countries and Australia. The U.S. government maintains that all of the prisoners are either members of the Taliban government armed forces of Afghanistan or of the Al Qaida terrorist network. All were taken into custody after the beginning of U.S. military actions in Afghanistan on October 7, 2001, although many were not taken prisoner in Afghanistan itself. Six Algerian prisoners, for example, were taken by the U.S. military from Bosnia, while one Australian national was taken from Egypt and a British national was taken from Zambia. More than 200 Al Qaida suspects picked up in six European countries reportedly were transferred to custody in Guantanamo.

President Bush issued a military order on November 13, 2001, authorizing the detention and trial, by military commission, of any current or former member of the Al Qaida organization, anyone who aids or abets their work or harbors their members. Military commission sentences allow for the non-unanimous imposition of the death penalty and are subject to limited review in the civilian courts. No known trials have been carried out on Guantanamo or elsewhere by those commissions to date. None of the detainees has been charged publicly with any criminal offense, and none has been provided with access to counsel or a court. Although the President recognized in February of 2002 that Taliban detainees “are covered by” the Geneva Conventions, he also concluded that neither the Taliban soldiers nor Al Qaida detainees are entitled to prisoner of war status.

Interrogation of the Guantanamo detainees began on January 23, 2002, and no detainee has been permitted to have access to a lawyer prior to or during that questioning. There was no indication that any of the detainees were made aware of their rights under the Vienna Convention on Consular Relations (which permits a foreign national to promptly contact and meet with a consular representative of his home government) or any of the other international instruments that apply to the United States and protect the fundamental human rights of the detainees, including the International Covenant on Civil and Political Rights (ICCPR), the American Declaration of the Rights and Duties of Man, or any of the Geneva Conventions, particularly the third, which deals with prisoners of war.

At the time of the initial filing of a petition with the Commission, there were 254 detainees, a number that had grown to more than 640 as of the beginning of February 2003. The Defense Department has budgeted for up to 2,000 inmates at Camp Delta, with contingency expenditures permitted over the next 20 years. In mid-2002, the press carried graphic pictures of the arrival of some of the detainees at Guantanamo in manacles and blackened goggles, and reports indicate that prisoners are refused access to calendars and watches. Interrogation can take place regularly at all times of night and day. As of September of 2002, reports indicated that nearly 60 prisoners were being treated for psychiatric problems, and in January of 2003, there were four new suicide attempts reported by the detaining officials themselves, bringing the total attempts reported by the government to 14 since the facility’s opening (press sources placed the number of suicide attempts at “at least 30” during 2002). Five elderly and infirm detainees returned to Afghanistan are the only reported releases to date from Camp Delta.

Amnesty International and Human Rights Watch, as well as other NGOs and foreign governments, have criticized U.S. actions relating to the Guantanamo detainees, particularly after recent disturbing press reports that indicate that up to 10% of the detainees previously had been determined to have no intelligence value during their interrogations in Afghanistan. Second, and much more alarming, are recent reports that US military uses “stress and duress” interrogation techniques condemned as torture by many international bodies. Third, some officials report that some terrorist suspects have been surrendered without proper legal process to countries where the US is well aware that torture is used to extract information. No administration official has disputed or denied these reports to date. The unrebutted reports of torture and transfer of detainees to countries known to torture led to the filing of another petition with the Commission by the Center for Constitutional Rights detailing those allegations in early February of 2003. No action by the Commission or response by the government had been received as of the time of this writing.

Commission Responses to Post-September 11 Events in the U.S.

The Commission has been active in its responses to the US war on terrorism, not only with the Guantanamo detainees but on other fronts as well. It has spoken up in a number of contexts, including its annual report, a broad general report on terrorism and human rights, and the litigation discussed here. First, in its Annual Report for 2001, the Commission noted that the United States took “exceptional measures” after the tragic events of September 11, 2001. The Commission noted, in that regard, that although the U.S. is a party to the International Covenant on Civil and Political Rights, it “has not notified the UN Secretary General in accordance with Article 4 of the Covenant of any resort by it to emergency measures that might justify derogation from the United States’ obligations under that treaty.” While the U.S. has no reporting obligations under the American Convention on Human Rights regarding declarations of emergency measures, because it is not a party to that treaty, the Commission also reiterated its oft-stated conclusion that the United States is “subject to the fundamental rights of individuals” contained in the OAS Charter and the American Declaration of the Rights and Duties of Man. (2001 Annual Report, at 670).

Second, on October 22, 2002, the Commission issued a comprehensive Report on Terrorism and Human Rights, which provides a legal framework and general recommendations regarding governmental responses to acts of terrorism, with which it has had extensive experience throughout the Americas. The Commission has dealt with cases and situations arising from guerrilla or insurgent organizations known for their use of terrorist methods, such as Peru’s Shining Path, as well as state terrorism, such as some of the responses to Shining Path and other insurgencies in Peru by the government of former president Alberto Fujimori, now in exile in Japan. While it does not address the issues in any national context, there is little doubt it is addressing the United States when it states, in its recommendations, that member states of the OAS must “refrain from the use of . . . military tribunals or commissions to try civilians” (Recommendation 10(c), and further that:

    "in situations of international armed conflict, when an individual has committed a belligerent act and falls into the hands of an adversary and a doubt arises as to their status as a privileged or unprivileged combatant or civilian, [the government must] convene a competent tribunal to determine the status of the detainee, and ensure that such persons enjoy the protections of the Third Geneva Convention ...". (Recommendation 10(g), emphasis added).

It is this last recommendation that also lies at the heart of the decision by the Commission in response to the petition filed in February, mentioned above. That petition sought only the issuance of precautionary measures, not a ruling on admissibility or the merits. On March 13, 2002, the Commission issued one of its most extensively documented requests for precautionary measures to the United States under Article 25 of its Rules of Procedure, a request that it later reiterated on May 28th. The rules permit the issuance of such measures “in serious and urgent cases” in order “to prevent irreparable harm to persons.” The rule is designed to protect the status quo ante of the alleged victims while the action is pending before the Commission, making it akin to a request for injunctive relief. The Commission’s ruling on precautionary measures does not constitute a ruling on the merits. Normally, a request for precautionary measures is sought contemporaneously with the filing of a petition for review of human rights violations on the merits, but in this case, the petitioners sought only precautionary measures. Because it was one of the first rulings on any aspect of the government’s new war on terrorism, it received extensive publicity, both nationally and internationally.

The Commission concluded in its precautionary measures request that the detainees are all “subject to the authority and control” of the United States government, wherever they are physically located. Despite U.S. government arguments to the contrary, the Commission does not lack jurisdiction because the detainees are in Guantanamo, as its powers reach to the extraterritorial acts of nations under an “authority and control” test similar to that used by the European Court of Human Rights. After the Commission’s initial request for precautionary measures in March, the U.S. State Department’s Office of the Legal Advisor filed an extensive legal defense of the administration’s Guantanamo policy in a 40-page submission to the Commission in April. That submission was the most fully articulated legal justification of U.S. policy to date, as the first legal challenge to the Guantanamo detentions in the United States was dismissed almost immediately for lack of standing of the petitioners. Coalition of Clergy, et al. v. Bush et al., 189 F. Supp. 2d 1036, reported at 41 I.L.M. 1264 (U.S. District Court, Cent. Dist. of California, 21 Feb. 2002).

As it has in the past, the government argued that the Commission lacks jurisdiction over the United States and is thus wholly without authority to bind the U.S. with its decisions. However, the government went on to defend its policies on the merits. The gist of that pleading and others that have followed later, was the assertion that the Guantanamo detainees, by virtue of the President’s determination that they are “unlawful combatants” and thereby enjoy no legal protections. Thus, they may be held at the military’s discretion until the cessation of hostilities - that is, until the end of the government’s war on terrorism. The detainees do not enjoy the protection of basic human rights, the government argues, because those rights have been pre-empted by the lex specialis of the “separate and distinct humanitarian law rules at issue.” Neither can the detainees claim the protections of humanitarian law, however, because the President has properly designated them as unlawful combatants, by which designation they fall outside of the protection of the Geneva Conventions. Thus, while the government asserts that it treats some of the detainees in a fashion consistent with the obligations of humanitarian law, it asserts it has no legal duty to do so. The detainees legally fail to qualify for any legal protection whatsoever, the government asserts, whether couched in terms of human rights or humanitarian law.

The Commission anticipated both the issue of jurisdiction and the merits of the government’s claims in its March letter. First, it was emphatic in its assertion that the U.S. government has an obligation to follow requests for precautionary measures:

    The Commission notes preliminarily that its authority to receive and grant requests for precautionary measures ... is, as with the practice of other international decisional bodies, a well-established and necessary component of the Commission’s processes. Indeed, where such measures are considered essential to preserving the Commission’s very mandate under the OAS Charter, the Commission has ruled that OAS members are subject to an international legal obligation to comply with a request for such measures.

As to the merits of the government’s claim, the Commission concluded that the detainees “remain the beneficiaries at least of the non-derogable protections under international human rights law.” The applicable international norms, the Commission asserted, require that “a competent court or tribunal, as opposed to the political authority, must be charged with ensuring respect for the legal status and rights” of the detainees. It is noteworthy that the Commission does not pre-judge the outcome of such a court proceeding, suggesting that were the United States to comply with the due process requirements of both human rights and humanitarian law, it could achieve the very outcome it now seeks to defend.

After submission of additional arguments from the petitioners, including the executive branch’s determinations as to the application of the Geneva Conventions to the detainees, the Commission issued an additional communication to the United States on July 23, 2002. The Commission weighed the new evidence submitted by both parties, but reiterated its conclusion that “doubts continue to exist concerning the legal status of the detainees,” and that the responses by the government “confirm the Commission’s previous finding that, in the State’s view, the nature and extent of rights accorded to the detainees remain entirely at the discretion of the U.S. government.” By the explicit language of its decision and its invocation of numerous cases in which it had interpreted the American Declaration in light of humanitarian law obligations, the Commission also rejected the U.S. government’s limited reading of the decision of the Inter-American Court of Human Rights in the Preliminary Objections decision in the Las Palmeras case, which, the Court ruled, bars direct application of the Geneva Conventions by it. Judgment No. 67, February 4, 2000.

The Commission also heard oral arguments in its October 2002 regular session on the status of the detainees, and the U.S. again reiterated its legal position before the Commission. The Commission now awaits the outcome of the domestic litigation in Rasul v. Bush, which is anticipated within the next few months.

Responses by U.S. and British Domestic Courts to “Unlawful Combatant” Claims

The judiciary within the United States generally has shown little willingness to intervene in cases involving the Guantanamo detainees and other cases involving allegations by the government of unlawful combatant status of detainees or accused. The issue is complicated not only because of disputed issues of territorial jurisdiction in the Guantanamo cases, but also because of the general unwillingness by the judicial branch to intervene in what it perceives to be foreign policy or war powers issues within the nearly exclusive prerogative of the executive. Moreover, because the administration has cast all of these cases as matters arising from combat and war, rather than as criminal matters, the courts similarly couch their reluctance to intervene in terms of executive powers over the military.

The US government also has taken extensive measures to hide the identities of alien detainees, both in Cuba and here at home, and to obstruct legal access to courts or counsel for all detainees, ostensibly to permit interrogations to continue unimpeded and to prevent contacts within terrorist networks. Because of the difficulties experienced by alleged terrorists such as Yaser Hamdi, Jose Padilla and Zacarias Moussaoui to achieve favorable rulings from the courts, the Inter-American Commission appears to be one of the few deliberative bodies willing to speak to the weaknesses in the Bush administration’s legal arguments.

The cases of Hamdi, Padilla, Moussaoui and John Walker Lindh, the so-called “American Taliban,” all raise complex issues of international law regarding prisoner and combatant status, as well as proper access to and treatment before the courts. As early as July of 2002, the federal district court judge in the Lindh case had ruled that Lindh, a U.S. citizen who had taken up arms with the Taliban, could not invoke the protections of the Geneva Conventions in asserting that he was a lawful combatant - a soldier - fighting a war on the side of the Taliban. United States v. Lindh, 212 F.Supp.2d 541, 552 et seq. (E.D. Va. 2002). Jose Padilla, a U.S. citizen arrested in Chicago on a material witness warrant, was designated as an “enemy combatant” by the President and is now being held at a Navy brig in South Carolina, without formal charges. In December of 2002, a federal district court judge in New York affirmed the President’s authority to designate Padilla as an “enemy” combatant but nonetheless concluded that he was entitled to the assignment of defense counsel in the exercise of the court’s discretion under statutory habeas corpus provisions, rejecting various government arguments that intervention by a lawyer on Padilla’s behalf was inconsistent with legitimate goals of intelligence gathering and prevention of further attacks. Padilla v. Bush, 02 Civ. 4445, U.S. Dist. Ct., S.D. N.Y. Dec. 4, 2002. The judge recently rejected arguments by the government urging him to reconsider his ruling.

More recently, the Fourth Circuit U.S. Court of Appeals, one of the most conservative federal courts in the nation, went further in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003). On January 8, that court held, like the other courts above, that Yaser Hamdi, a U.S. citizen captured during battle in Afghanistan, was properly designated an unlawful combatant under the President’s war powers. The court, however, also held that the Third Geneva Convention was a non-self-executing treaty, meaning that Hamdi could not invoke its provisions without further Congressional action to implement the treaty domestically. The district court decisions in both Lindh and Padilla had both found the treaty to be self-executing. The court’s decision effectively leaves Hamdi, now in custody in a Naval brig in Norfolk, Virginia, without access to counsel or the courts.

Two other recent decisions in the domestic courts merit mention here. In late January, 2003, the trial judge in the federal court trial of Zacarias Moussaoui ruled in a closed hearing that Moussaoui should be provided with access to Ramzi Binalshibh, the self-described coordinator of the September 11, 2001 terrorist attacks in the United States and also in U.S. custody, in order to be able to effectively prepare Moussaoui’s defense to capital charges of his own involvement in those attacks. Close followers of the trial suggest that the government’s resolve not to permit the two alleged terrorists to meet may compel them to seek the first known trial before a military commission, a decision which would unquestionably raise further criticism of such tribunals. Finally, in Boston, the judge who sentenced Richard Reid, the admitted Al Qaida shoebomber, was praised for his strong condemnation of Reid during the sentencing hearing. The judge, responding to assertions by the defense that Reid was a combatant in a war, responded by repeatedly asserting, “you are not an enemy combatant - you are a terrorist.” By that reference, the judge seemed to suggest that the criminal law, not the law of war, was the way to deal with terrorism, thus ironically undermining the administration’s assertions that their actions are justified as legitimate actions in the war on terrorism.

The term “legal black hole,” also used by Amnesty International to refer to the status of the Guantanamo detainees, seems to originate with a decision by the British courts in R (on the Application of Abbasi and another) v. Secretary of State for Foreign and Commonwealth Affairs, Court of Appeals, Civil Division, 6 Nov. 2002. There, a British national named Feroz Ali Abbasi, a Guantanamo detainee since January of 2002, complained to British judges that he had been without access to a court or any other tribunal, or even to a lawyer, since his arrival in Guantanamo. His representatives sought to compel the British Foreign Office to take some action on his behalf to challenge his arbitrary detention in Cuba. The British court declined, noting that there were several legal actions pending in the United States dealing with the matter, and that Mr. Abbasi is “within the sole control of the United States executive.” The Court did note, however, that although Mr. Abbasi’s detention as an “illegal combatant” may ultimately be justified, the judges found it “objectionable . . . that Mr. Abbasi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal.” (paragraph 66). It was in that context that the British tribunal expressed its profoundest desire that the US courts assume jurisdiction so as not to leave Mr. Abbasi in arbitrary detention in that “legal black hole” alluded to by Amnesty International and others.

The British court also noted, in its decision, that the issue of the validity of the detention in Guantanamo Bay was pending before the Inter-American Commission on Human Rights, but that “it is as yet unclear what the result of the Commission’s intervention will be.”

The core of the Commission’s precautionary measures ruling lies in its conclusion that the executive branch of the U.S. government is not entitled to unilateral and unreviewable designation of the Guantanamo detainees as unlawful combatants under international humanitarian law. What is common to all three of the domestic court decisions in the cases involving Lindh, Padilla and Hamdi is the courts’ common assumption that there was no doubt as to the status of the individuals involved in those cases; all were legitimately and properly designated as “illegal,” or more properly “unprivileged” combatants, by the executive branch. The petitioners’ position in the Guantanamo case relies on Article 5 of the Third Geneva Convention, customary law and many leading experts on international law to assert that the detainees there are entitled to a presumption of treatment as privileged combatants “until such time as their status has been determined by a competent tribunal,” to quote the language of the Convention. The detainees must be sorted out as civilians, combatants or criminals rather than lumped into a single composite group of unlawful combatants. The Commission’s view is not a radical position but one consistent with established interpretations of international human rights and humanitarian law.

A related request for precautionary measures was filed with the Inter-American Commission on Human Rights by human rights NGOs in June 2002, on behalf of “INS detainees ordered deported or granted voluntary departure.” These detainees are foreign individuals, mostly men of Middle Eastern or Asian nationality, detained within the United States. These individuals are taken into custody by the Immigration and Naturalization Service (INS) for minor immigration rule violations such as visa overstays and then kept in custody indefinitely, without criminal charges or the opportunity to leave voluntarily for their home countries. The INS holds closed hearings in these matters, does not release the names of the individuals in question, and refuses to provide public information on the conditions of their confinement or their treatment in custody. The detainees have no effective legal means of challenging their detention. While their exact numbers are unknown, recent detentions in conjunction with new “alien registration” requirements may take the number of detentions above 2,000, although some have subsequently been released or deported.

After repeated requests for information to the United States went unanswered, the Commission issued a request for precautionary measures on September 26, 2002. The request noted that the government had failed to clarify or contradict the petitioners’ assertions that there is no basis under domestic or international law for continued detention of these persons, that there is no public information on the treatment of these detainees in custody, and that the detainees have no basis for challenging their status. The request for precautionary measures seeks to protect the detainees’ "right to personal liberty and security, their right to humane treatment, and their right to resort to the courts for the protection of their legal rights, by allowing impartial courts to determine whether the detainees have been lawfully detained and whether they are in need of protection."

State of Exception and Human Rights

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This document has been published on 26feb03 by the Equipo Nizkor and Derechos Human Rights